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Building Safety Act 2022 – A Revolution

The Building Safety Act 2022 received Royal Assent on 28 April 2022 and the provisions of the Act begin to come into force on 28 June 2022.

The Act makes substantial changes in the following areas:-

1. New Rights of Recourse

Under the Defective Premises Act 1972, the Act is extended by giving a right to claim for any work undertaken to an existing dwelling, including refurbishment, and the limitation periods are extended from 6 to 15 years prospectively and 30 years retrospectively with buffer periods for potential claimants who find themselves close to the limitation deadline.

Section 38 of the Building Act 1984 is brought into force, giving private individuals the right to claim where they suffered damage because work on a building fails to comply with building regulations. The Section is not limited to just homeowners and dwellings but will apply to all buildings in England and Wales. Once again, the limitation period is extended to 15 years prospectively.

Construction Product Manufacturers

The Act creates a completely new right to sue construction product manufacturers for damages for breaches of the Construction Products Regulations if that breach causes a building or dwelling to become unfit for habitation. Again, the limitation period is 15 years prospectively.

Building Liability Orders are a new concept which enables an application to be made to the court to allow a party to pierce the corporate veil and allow parties – generally developers – to be in the firing line for safety defects, even though they carried out projects through shell companies or special purpose vehicles. Such Orders relate to the claims under the Defective Premises Act 1972 and Section 38 of the Building Act 1984.

2. New Responsible Persons

The Act creates the concept of the Building Safety Regulator, Duty Holders and Accountable Persons. The duties and responsibilities of which are in the course of being determined through secondary legislation, but a primary part of the obligations will be the maintenance and management of the “golden thread” of building information concerning the relevant building.

3. Introduction of Gateways

During the planning and construction process, all high rise buildings will have three new gateways which must be passed before a building can be occupied. These are:-

Gateway 1 – At planning (already effective from 1 August 2021) requiring those seeking planning permission for higher risk buildings to submit a fire statement for approval;

Gateway 2 – Pre-construction – At this stage, applicants will have to demonstrate how the proposals comply with Building Regulation requirements, including information about new duty holders’ competence, the golden thread and reporting requirements. if compliance cannot be demonstrated, the project will not proceed. The new building safety levy payment must be made at Gateway 2;

Gateway 3 – Post-construction pre-occupation – The completion final certificate phase at which the handover of the relevant documents to both the regulator and the building owner will take place. The building cannot be occupied until Gateway 3 is completed.

Landlords will have to appoint one or more accountable persons for high risk buildings and they will have extensive duties.

4. New Home Warranties

The Act obliges developers to provide a purchaser with a New Home Warranty for 15 years – longer than the current warranty requirement.

5. New Homes Ombudsman Scheme

The Act requires the Secretary of State to make arrangements for there to be a New Homes Ombudsman Scheme to which developers must belong.

6. Building Safety Levy and Remediation Costs

The Act gives powers to the Secretary of State to bring in a new building safety levy designed to contribute towards the cost of remediating historical building safety defects and this must be paid at Gateway 2.

The Act also provides increased protection for leaseholders in respect of certain costs and notably certain excluded costs cannot be passed on through the service charge, including those incurred as a result of a penalty imposed by a regulator; legal costs/proceedings; any costs incurred due to negligence, breach of contract or an unlawful act by a relevant person; all costs, including any regulations to be made by the Secretary of State.

The Act also provides for the introduction of a new schedule dealing with remediation costs under qualifying leases and there are also exemptions for those with qualifying leases from paying service charges in relation to relevant defects if the value of the qualifying lease is below certain thresholds in Greater London and elsewhere and other lessees are only liable as long as the service charge does not exceed a permitted maximum. There are restrictions on landlords recovering shortfalls from tenants.

7. Building Control Professionals

The Act will require building control professionals to be registered. The new Building Safety Regulator will oversee the Building Control system and be the registrar for the entire profession.

The Future

The regulations which will accompany the Act are currently in the course of preparation and are likely to come into force within the next 18 months to 2 years.

If you work in the construction industry and would benefit from the expertise of our dedicated team, please contact: Martin Collingwood at Andrew Jackson Solicitors martin.collingwood@andrewjackson.co.uk 01482 601 305

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